[January 8, 2008. This talk is based on a draft
of a longer paper. It is not to be cited or redistributed without written
permission from the author. Copyright 2008 John W. Lango.]

THE JUST WAR PRINCIPLE OF LEGITIMATE AUTHORITY

John
W. Lango

Professor

Department of Philosophy

HunterCollege of the CityUniversity of New York

695
Park Avenue, New York, NY10065USA

john.lango@hunter.cuny.edu

Questioning the Legitimate Authority Principle

There are three
sessions in this conference with the title "Emerging Issues in Just War
Theory." In accordance with a standard conception of applied ethics, just
war principles have been applied to such emerging issues as armed humanitarian
interventions and counterinsurgency operations, and usually these applications
have proven controversial. Moreover, there have been controversies about the
principles themselves. Presently, there are different versions of just war
theory, and different versions of just war principles. For instance, another
speaker in this session refers in her title to a prima facie version of just
war theory. Just war theory itself is an emerging issue in just war theory.

About ten years ago, A. J. Coates
observed that the legitimate authority principle "has become the most
neglected" of the just war principles (1997, p. 123). (This principle has
also been called the competent authority principle, the proper authority
principle, and the right authority principle.) A traditional version of the
principle was summarized by Richard Regan thus: "Just-war theory requires
that decisions to wage war be made by those who are legally authorized to do
so" (1996, p. 20). A few years after Coates's observation, when NATO
intervened in the crisis in Kosovo (March 1999), there was controversy about
whether this armed humanitarian intervention had to be legally authorized by
the Security Council (Coppieters 2002, pp.211-13). Similarly, before the onset
of the recent Iraq War, there also was controversy about legal authorization by
the Security Council. In addition to controversy about how the legitimate
authority principle pertains to individual states, regional organizations, and
the Security Council, there was controversy about the principle itself. Once
relatively neglected, the legitimate authority principle itself has become one
of the emerging issues in just war theory.

Let me suggest that a multitude of
questions may plausibly be raised about the legitimate authority principle,
among which are the following. Why should a just war theory include such a
principle? Which version of the principle is most acceptable? Is the idea of
legitimacy different from the idea of legality? Is the idea of legitimacy
different from the idea of morality? Should a moral conception of legitimate
authority be subordinated to a legal conception of state sovereignty? Should
the principle be applicable to uses of military force by nonstate actors --
e.g., revolutionary groups and private military organizations? In addition to
requiring that decisions to resort to war must be made by persons who are
authorized to do so, should the principle require that the conduct of war must
be controlled or regulated by them? What is the role of the principle when
authority for uses of military force is delegated from leaders to subordinates
-- e.g., from the President to the Secretary of Defense, or from a commanding
military officer to subordinate military officers?

In a brief talk, I cannot try to
answer so many questions. I shall concentrate primarily on the last question,
the one about the delegation of authority. For the sake of concreteness, some
of the main points are illustrated by means of the chapter "Leadership and
Ethics for Counterinsurgency" in the new U.S. Army/Marine Corps
counterinsurgency field manual (COIN FM 2006).

Revising the Traditional Legitimate
Authority Principle

Frequently,
with the advent of the modern international system of sovereign states, the
traditional legitimate authority principle has been understood as pertaining to
wars between states. Recently, for instance, such a version of the principle
was formulated by Brian Orend as follows. "A state may go to war only if
the decision has been made by the appropriate authorities, according to the proper
process, and made public, notably to its own citizens and to the enemy
state(s)" (2000, p. 49). However, this version of the principle is too
restrictive. For example, it apparently is inapplicable to armed humanitarian
interventions or counterinsurgency operations by NATO or other coalitions of
the willing.

My view is that traditional just war
principles should be generalized, so that they are applicable to forms of armed
conflict other than interstate wars -- for example, not only armed humanitarian
interventions and counterinsurgency operations but also revolutionary wars and
civil wars (Lango 2007). (Henceforth the term "war" is used to
encompass all forms of armed conflict.) Consequently, to be acceptable, the
traditional legitimate authority principle should be generalized, so that it is
applicable to all forms of armed conflict. To clarify how it should be
generalized, I need to make some additional broad remarks about just war
theory.

Just war theory is a moral theory,
and just war principles are moral principles. More specifically, they are
deontological principles. Because they are deontological, they are
agent-centered, and they hold primarily of the actions that agents perform. A
deontological principle might be formulated as a moral obligation.
Alternatively, it might be formulated as a moral permission or as a moral
prohibition. Often, but not always, an action performed by an agent is directed
at a target. Typically, a deontological principle morally obligates or permits
or prohibits doing something to a target.

In the preceding version of the
traditional legitimate authority principle, the agent is "a state"
and the target is "the enemy state(s)." Note also that this principle
is formulated as a moral permission. To generalize it, so that it is applicable
to counterinsurgency operations, the class of targets has to be generalized to
include insurgent groups. To generalize it, so that it is applicable to
revolutionary wars (e.g., the American Revolution), the class of agents has to
be generalized to include revolutionary organizations. In short, to generalize
it sufficiently, both the class of agents and the class of targets have to be
generalized.

Individual states, regional
organizations, the Security Council, insurgent groups, and revolutionary
organizations are collectivities, or collectivities of collectivities. However,
if the legitimate authority principle is to be sufficiently general, the class
of agents should include individual human beings, as should the class of
targets. It is sometimes convenient to regard states and other collectivities
as agents, but the primary agents are individual human beings who are members
of the collectivities. Actions of a collectivity are derivative from actions of
human beings. The waging of war by a state or other collectivity can be
explicated in terms of the military actions of human beings -- most basically,
their uses of armed force, the targets of which are, most basically, other
human beings. In brief, what is primary are individual human agents, their
actions, and the individual human targets of those actions.

A different version of the
traditional legitimate authority principle was mentioned above, one that
"requires that decisions to wage war be made by those who are legally
authorized to do so" (Regan 1996, p. 20). So as not to beg the question of
whether the idea of legitimacy is different from the idea of legality, the word
"legally" should be replaced by the word "properly." Who
are these properly authorized agents? Traditionally, when the principle was
restricted to interstate wars, properly authorized agents were leaders or
rulers of states. Accordingly, in generalizing it, so that it is applicable to
other types of collectivities than states, the class of properly authorized
agents should be enlarged to include those persons who are in relevant senses
leaders or rulers of collectivities of the other types -- for example, leaders
of revolutionary organizations (e.g., George Washington). Presumably, in a
constitutional democracy, the class of properly authorized leaders is identical
to the class of legally authorized leaders. However, in collectivities of many
of the other types, the idea of being properly authorized has to be
conceptualized differently.

Why should a just war theory include
such a principle? James Childress has expressed succinctly one reason for
having a legitimate authority principle: it is the principle that
"determines who is primarily
responsible for judging whether the other criteria [i.e. the other just war
principles] are met" (1982, p.74). I want to emphasize that such a
responsibility is a moral responsibility. Those agents who are properly
authorized have the moral responsibility for judging whether the other just war
principles are satisfied.

Consider, for example, the just
cause principle. It is a deontological principle, and so it is agent-centered.
Formulated as a moral prohibition, it prohibits agents from resorting to
interstate war or any other form of armed conflict if there is not a just cause
for doing so. The other just war principles are deontological principles, for
instance, the last resort principle, which prohibits agents from resorting to
interstate war or any other form of armed conflict if every reasonable nonmilitary
measure has not been attempted first -- e.g., negotiations (Lango 2006).

Sadly, all too many properly
authorized agents ignore this moral responsibility for judging whether the just
cause principle, the last resort principle, and the other just war principles
are satisfied. However, as a moral theory, a just war theory involves an ideal
of moral responsibility, the ideal that properly authorized agents ought to
make sound moral judgments about whether the other just war principles are
satisfied. The other just war principles are moral principles, and properly
authorized agents ought to be bound by them. Additionally, the legitimate
authority principle ought to be morally binding. Ideally, agents who have the power to make decisions about whether to
resort to interstate war or any other form of armed conflict ought to engage in
moral self-reflection, and ask themselves such questions as: do I really have
the proper authority to make such decisions?

The Question of Delegation of Authority

The reason expressed
by Childress for having a legitimate authority principle contains the word
"primarily." Presumably, then, properly authorized leaders or rulers
of a particular state have the primary
moral responsibility in that state for judging whether the other just war
principles are satisfied. The reason also is pertinent to leaders or rulers of
collectivities other than states. For instance, properly authorized leaders of
a revolutionary group have the primary
moral responsibility in that revolutionary group for judging whether the other
just war principles are satisfied. Also, properly authorized leaders of a
counterinsurgency operation have the primary
moral responsibility in that counterinsurgency operation for judging whether
the other just war principles are satisfied.

In this talk, I am concentrating on
the question: what is the role of the principle when authority for uses of
military force is delegated from leaders to subordinates? To answer this
question about the delegation of authority, the class of properly authorized
agents should be further enlarged to include subordinates of leaders or rulers.
By means of the delegation of authority from properly authorized leaders or
rulers, subordinates can also be properly authorized (cf. Lango 2008). In their
delegated spheres of authority, properly authorized subordinates are morally
responsible for judging whether the other just war principles are satisfied.
Indeed, leaders or rulers have that moral responsibility, but so do their
subordinates. For example, in the United States, the President, as
Commander in Chief of military forces, is (presumably) a properly authorized
leader. (I am presuming this, and setting aside the question of whether members
of Congress, who have the power to declare war, are properly authorized
leaders.) Accordingly, the President, as Commander in Chief, may delegate
authority (through a chain of command) to, for instance, the commander of a
counterinsurgency operation. In his delegated sphere of authority, that
commander also is morally responsible for judging whether the other just war
principles are satisfied.

Ethics and Leadership in Counterinsurgency
Operations

To illustrate
my contention that properly authorized subordinates also are morally
responsible for judging whether the other just war principles are satisfied, I
shall discuss the chapter "Leadership and Ethics for
Counterinsurgency" in the new U.S. Army/Marine Corps counterinsurgency
field manual (COIN FM 2006).

Among the ethical ideas discussed in
that chapter, there is the idea of acceptance
of risk: "Combat, including counterinsurgency and other forms of
unconventional warfare, often obligates Soldiers and Marines to accept some
risk to minimize harm to noncombatants" (7-21). (Such references are to
paragraphs in chapters; in this case, the reference is to paragraph 21 in
chapter 7.) Traditionally, in just war theory, such an idea of risk acceptance
is grounded on the just war principles of proportionality and discrimination
(or noncombatant immunity). Together, these two principles morally prohibit
intentionally or disproportionately harming noncombatants, even if military
force could be used more effectively by inflicting such harm. Comparably, in
the COIN FM, the idea of risk acceptance is grounded on the core ethical
requirement that: "Soldiers and Marines are not permitted to use force
disproportionately or indiscriminately" (7-22). During counterinsurgency
operations, those officers to whom authority has been delegated should be
morally responsible for judging whether the proportionality and discrimination
principles are satisfied.

The subject of judgment is included
in the COIN FM: effective counterinsurgency operations have a "mosaic
nature," they are "decentralized"; consequently, even at the
lowest level of command, local commanders are expected "to use initiative
and judgment to accomplish the [local] mission" (1-145). Accordingly, even
local commanders should be expected to use moral judgment. In discussing the
idea of risk acceptance, the COIN FM provides the following remarkable example
from the Iraq War, entitled "Defusing a Confrontation":

[On 3 April 2004,
a] small unit of American soldiers was walking along a street in Na-jaf [en
route to meeting with a religious leader] when hundreds of Iraqis poured out of
the buildings on either side. Fists waving, throats taut, they pressed in on
the Americans, who glanced at one another in terror.... The Iraqis were
shrieking, frantic with rage.... [It appeared that a shot would] come from
somewhere, the Americans [would] open fire, and the world [would] witness the My Lai massacre of the Iraq War. At that moment, an
American officer stepped through the crowd holding his rifle high over his head
with the barrel pointed to the ground. Against the backdrop of the seething
crowd, it was a striking gesture.... "Take a knee," the officer
said.... The Soldiers looked at him as if he were crazy. Then, one after
another, swaying in their bulky body armor and gear, they knelt before the
boiling crowd and pointed their guns at the ground. The Iraqis fell silent, and
their anger subsided. The officer ordered the men to withdraw [and continue on
their patrol].

In this example, it would appear
that the commanding officer of the small unit of American soldiers used his
moral judgment, and decided how the ideas of proportionality and discrimination
were best satisfied. During counterinsurgency operations, even local commanders
should be morally responsible for judging whether the proportionality and
discrimination principles are satisfied.

Legitimate Authority and Last Resort

Furthermore, during
counterinsurgency operations, those officers to whom authority has been
delegated should be morally responsible for judging whether the remaining just
war principles are satisfied -- for example, the last resort principle.
Accordingly, the idea of risk acceptance in the COIN FM should be extended to
include the risk that soldiers and marines would incur by using nonmilitary
measures rather than military force. In the quoted example, it would appear
that the commanding officer also used his moral judgment about the idea of last
resort. For he decided not to use military force, and instead ordered his
soldiers to take a knee. Strikingly, this nonmilitary measure that he ordered
his soldiers to use is a paradigm of methods of nonviolent direct action, methods
used by Mohandas Gandhi and Martin Luther King (cf. Sharp 2005).

The COIN FM has obvious relevance
for the current insurgencies in Afghanistan
and Iraq.
However, in the words of the Foreword, "it addresses the common
characteristics of insurgencies," and it "takes a general approach to
counterinsurgency operations." Let me suggest that its approach should be
more general. It acknowledges that there are "many forms" of
insurgencies (1-15), and that insurgents "may resort to violence because
of regime changes or government actions" (1-9). Nevertheless, it focuses
on unjust insurgencies against legitimate governments (5-2). Apparently, it
presupposes a dichotomy between legitimate and illegitimate governments
(1-113). Instead, it should presuppose a spectrum of government legitimacy and
illegitimacy, and correlatively a spectrum of insurgent justice and injustice.
To take a more general approach, it should enlarge its focus so as to range
also over partly just insurgencies against partly illegitimate governments.

For example, suppose that the
current crisis in the Darfur region of the Sudan is transformed as follows.
The present government in Khartoum is replaced
in a coup d'etat by a less illegitimate government, one that is willing to
negotiate a genuine peace agreement with the rebel groups in Darfur.
At the invitation of the new Sudanese government, a U.S.
military force enters Darfur, with a mission
that includes providing security for civilians and providing security for
negotiations. Unfortunately, because of misunderstandings or misperceptions or
miscalculations, an insurgency begins. Rebel forces launch military strikes
against military forces of the Sudanese government, and a U.S. counterinsurgency operation
follows. But the insurgents are not wholly unjust. Instead of simply military
victory, the goal of the U.S.
counterinsurgency operation should include helping to bring about a fair peace
agreement between the rebel groups and the Sudanese government.

The last resort principle prohibits
agents from using armed force if every reasonable nonmilitary measure has not
been attempted first -- for example, negotiations. Although the topic of
negotiations is not prominent in the COIN FM, there is this significant
admission (in Appendix A): "Achieving success means that, particularly
late in the campaign, it may be necessary to negotiate with the enemy"
(A-52). To take a more general approach, it should be recognized that the
insurgents are not always simply the enemy. Sometimes, by means of nonmilitary
measures, partly just insurgents could be pressured to negotiate with a partly
illegitimate government, which also might have to be pressured. The last resort
principle morally obligates a U.S.
counterinsurgency operation to use nonmilitary measures to bring about
negotiations, whenever it is reasonable to do so. In general, during
counterinsurgency operations, those officers to whom authority has been
delegated should be morally responsible for judging whether the last resort
principle is satisfied.

The COIN FM "provides
principles and guidelines for counterinsurgency operations" (Foreword). In
conclusion, my suggestion is that, in addition to discrimination and
proportionality principles, it should provide other just war principles,
including a last resort principle and a legitimate authority principle.

Lango, John W. 2006. "The Just War Principle of Last
Resort: The Question of Reasonableness Standards," Asteriskos: Journal of International and Peace Studies 1:1-2
(2006): 7-23. Available at
http://www.igesip.org/asteriskos/1_2/galego/art1.pdf. Part of an earlier draft
of this paper was presented at 2006 JSCOPE ("Last Resort and Coercive
Threats: Relating a Just War Principle to a Military Practice").

_____. 2007. "Generalizing and Temporalizing Just War
Principles: Illustrated by the Principle of Just Cause," in Rethinking the Just War Tradition, ed.
Michael Brough, John W. Lango, and Harry van der Linden (Albany, State
University of New York Press).

_____. 2008. "Military Operations by Armed UN
Peacekeeping Missions: An Application of Generalized Just War Principles,"
forthcoming in The Moral Dimension of
Asymmetrical Warfare: Counter-terrorism, Western Values, Military Ethics,
ed. Ted van Baarda and Desirée Verweij (Leiden:
Martinus Nijhoff). Part of an earlier draft of this paper was presented at 2007
ISME ("UN Peacekeeping Missions and Just War Principles: The Cases of Rwanda
and Darfur").

[1]. This passage is
placed between 7-13 and 7-14. It is quoted exactly as it appears in the COIN
FM, except that the date of the event has been changed from 3 April 2005 to 3 April 2004. It is a
quotation from the cited New Yorker
article.